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Thursday, September 10, 2009

Two Tarrant capital cases tainted by prosecutor misconduct

A former Tarrant County prosecutor who retired amidst misconduct allegations last year committed so-called "Brady" violations (i.e., withholding exculpatory evidence from the defense) in two different capital murder cases, the Fort Worth Star-Telegram reports. First:

In December, the Texas Court of Criminal Appeals overturned the conviction of Death Row inmate Michael Toney after the Tarrant County district attorney’s office agreed that [prosecutor Mike] Parrish failed to turn over to the defense at least 14 documents containing exculpatory or impeaching evidence.

Toney was sentenced to death in 1999 for the 1985 bombing of a Lake Worth trailer that killed three people. The withheld evidence cast doubt on the testimony of Toney’s ex-wife and former best friend, who were key witnesses against him. No physical evidence connected Toney to the bombing.

The district attorney’s office voluntarily recused itself from the Toney case, which is now being handled by the Texas attorney general’s office.

Mr. Toney was just released last week after sitting on death row since his trial in 1999. The Attorney General dismissed charges, though the Tarrant DA says he may still be retried. But the Startlegram reports about another capital case in which the same prosecutor allegedly withheld Brady material and knowingly violated the defendant's attorney-client privilege. Defense attorney Robert Ford said that:

Parrish committed a Brady violation when he failed to turn over Toledano’s psychological report to Richardson’s defense team. A Brady violation occurs when a prosecutor violates a defendant’s constitutional rights by withholding evidence favorable to the defense.

Ford also says Parrish failed to reveal to a judge or a grand jury foreman that he had been indirectly receiving information from Richardson’s legal assistant about the case, interfering with her attorney-client privilege.

The judge in the case denied a request by the defense in the latter case for the Tarrant County DA's office to recuse itself, but it sure appears Mr. Parrish employed some shady tactics over the last decade in these high-profile, high-stakes cases on behalf of the Tarrant DA.

These revelations raise a question I asked soon after Michael Toney's verdict was overturned: "Since the state bar won't discipline them, there's no criminal sanction for withholding evidence, and the US Supreme Court has ruled that they carry no civil liability, what should happen to prosecutors who cheat to get a conviction? What other options are there for reining in such behavior?" What do you think should happen to Mr. Parrish?

The same thing that should happen to capital defense counsel who try to game the system by making false representations on behalf of their clients in their zeal to avoid the death penalty at all costs; who present biased "mitigation" evidence which is totally lacking in any semblence of objectivity; who present "expert" testimony by anti-death penalty "prostitutes" who will say anything for a fee; and who play "chicken" with court deadlines in a contrived effort to discredit a sitting justice rather than to assert a meritorious, and timely, claim on behalf of their client.

The fact of the matter is that the majority of capital defense counsel, spurred on by the anti-death penalty establishment and media, routinely violate ethical rules established by the state bar by making invalid claims in court and in pleadings, by making extra-judicial statements which are calculated to prejudice jury panels, and by making false post-convictions claims that have no basis in law or in fact. They routinely push the ethical "envelope" asserting the justification that "death is different." Yet how many times do you hear of any ethical sanctions being imposed on them?

Prosecutors do absolutely need to be held to a higher standard. The power that comes with their office justifies such. At the same time, any suggestion that the potential for unethical behavior in capital litigation lies exclusively within the province of the prosecution is totally preposterous. What's that old adage: "What's good for the goose is good for the gander?"

Anon 11:53, "The other guy does it, too!" is a truly poor excuse for anything. In a capital case, if the defense behaves unethically and gets their client off, we've missed a chance to punish the guilty. If a prosecutor does it to get a conviction, we've both punished (perhaps executed) an innocent person AND failed to get the guilty one. Prosecutors should always be held to a higher standard for just that reason.

11:53, nobody but you has offered a "suggestion that the potential for unethical behavior in capital litigation lies exclusively within the province of the prosecution." You're having a conversation with yourself, and it seems like a pretty dull one at that.

Anon 11:53: One prosecutor to another, you've been doing this too long. There is an ENORMOUS difference between prosecutors and defense counsel, and you seem to have forgotten it. In representing their client, defense counsel owes the client zealous advocacy. No, that does not excuse ethical violations, but it is certainly NOTHING like the very high standard which Texas law applies to prosecutors NOT TO CONVICT BUT TO SEE THAT JUSTICE IS DONE. IOW, defense counsel wants to win. We are supposed to do justice. NOT the same. Sorry you feel otherwise.

It is clear that Chelsea Richardson should have a re-trial.Mr Parrish and the whole District Attorney's Office should be fined the maximum amount available for the Texas State Bar to administer against them. Susanna Toledano should be re-evaluated for competence to testify in a re-trial and if it emerges she is incompetent to give evidence then Ms Richardson should walk free, as without the lies of her former friend, there is no case against her.

Grits, you're the one who posed the question "what should happen to prosecutors who cheat to get a conviction? What other options are there for reining in such behavior? What do you think should happen to Mr. Parrish?" I was merely responding.

I never once suggested there should not be an ethical sanction for prosecutors who fail to abide by legal and ethical guidelines. I guess the "pretty dull" point that I was trying to make is why is it so newsworthy when a prosecutor has an ethical lapse? And yet capital defense counsel seem to get a "pass" from the bar and the media because their unethical conduct is merely considered to be "zealous advocacy," (as stated by Anon. 2:05).

Ultimately, it's about the integrity of the SYSTEM. Both sides should be required to play by the rules. Defendants, victims, and society have every right to have verdicts that are based upon the TRUTH; not based upon distorted facts or outright falsehoods. I would venture to guess that the survivors of capital murder victims who have had to endure years of bogus and offensive defense claims throughout the trial and appellate process would describe that experience as anything but "dull."

I think the problem here is best exemplified by Gravyrug's comment that "if the defense behaves unethically and gets their client off, we've missed a chance to punish the guilty." Is that all we've really missed? Does society and the victim no longer have an interest in the correct and just result being obtained?

4:22, justice is not a predetermined "result," it is a process for reaching a decision. And when prosecutors violate their ethical obligations during that process, no matter what the result there can be no justice.

Your rant against defense counsel in capital cases has nothing to do with Mr. Parrish and belies an impoverished understanding of the justice system. See 2:05 re: the difference in duties. Prosecutors' job is "not to convict but to see that justice is done." If you don't understand the difference between the duties of a state attorney representing the public and one representing the interests of an individual defendant, I simply won't be able to explain it to you here.

For that matter, counsel for capital defendants don't get a free ride. They're bashed all the time for their actions. Google David Dow's name and you'll find many, many negative references, like this one. They don't escape criticism and neither should unethical prosecutors.

"why is it so newsworthy when a prosecutor has an ethical lapse? And yet capital defense counsel seem to get a "pass" from the bar and the media"

Because it is the opposite of what people expect. Citizens have a reasonable expectation that prosecutors are the good guys. The exercise of prosecutorial discretion is probably the most powerful authority in our criminal justice system. In a very real sense this is a more powerful discretion than the judicial discretion wielded by judges. As was mentioned above, prosecutors are supposed to serve justice so when they don’t it is a big freaking deal. Please read this: Man Bites Dog

Anon 2:05 Thank you so much for your comment. I know that most prosecutors are honest and ethical people but unfortunately there are enough bad apples out there to make you all look bad. Prosecutors have enormous power and should be held to a higher standard.

Here is a novel idea...since these prosecutors are not held to a standard that allows real justice to be served, no sanctions, no civil liability. Why not make it criminal liability? Let them go to the same prison units they sent the guy/girl to, and spend the exact number of days/years the convicted spent inside. Make the old saying "what goes around come around" a reality and perhaps this horrible type of injustice will cease. Just and idea...

Boyness ~ but that's not a good enough reason not to try. Standing by when you can see something is so fundamentally wrong, and impacts so many lives in such a potentially final way has to be worse than trying and possibly failing in your attempts to make the system better and fairer.

Sadly the only sanctions available to the Texas State Bar will be to fine those responsible or to disbar them. Parrish has retired so being disbarred would not hurt him. The Toney case discredits him anyway and he deserves to have his name dragged through the mire as a cheat, a liar and a completely unethical prosecutorial thug.

He must be fined over the Toney debacle and again for the Richardson case. Whatever Judge Herod says, Parrish engaged in attempt at legalised lynching of both.

The travesties that were conducted by this prosecutor is something that has been going on since the beginning og our justice system. Look at all of the overturned cases in the state of Texas. With these types of misconduct there should be laws put in place, but as the Supreme Court stated, there is no place for civil litigation or charges against such persons. Like most high-profile positions, there are no laws in place, created, or sanctioned for punishment. Why? Maybe because of the Supreme Court Justices that are in place? Maybe because of senate and congress personal, or maybe because no one really cares until it happens to them. I voted that society needs to DEMAND that these persons in high places be held accountable, and that new laws be put in place.

I never once suggested there should not be an ethical sanction for prosecutors who fail to abide by legal and ethical guidelines. I guess the "pretty dull" point that I was trying to make is why is it so newsworthy when a prosecutor has an ethical lapse? And yet capital defense counsel seem to get a "pass" from the bar and the media because their unethical conduct is merely considered to be "zealous advocacy,"

Prosecutors SHOULD be an unbias'd opponent that gives out evidence in a case to allow a jury/judge that ability to make a fair and honest ruling. Personal opinion has no place in the office of a DA. The idea that a prosecutor can or should interject their beliefs into a judgment of another instead of presenting facts is absurd. Absconding evidence in a CAPITAL case is criminal.

I find it hard to credit that anyone can be naive enough to believe that DA's are anything but conviction motivated. If you go into a courtroom thinking right is on your side, so justice is going to be served, you're going to get screwed.

Anon 11:53 The goverment has a duty to not violate the constitutional rights of its citizens, even those being prosecuted. As the government's representative the prosecutor has that same duty. The duty the defense attorney has it to his client. That is why there is and should be a different standard. I don't think your post actually said you were another prosecutor but another post seemed to indicate that you are. I am skeptical that you really are though because its hard to believe someone could make it through law school and miss such a fundamental concept.

Tarrant county possess high levels of misconduct, even in the juvenile side. Review the juvenile file, if you can, of Jacob Cobb. A youth who was sentenced to 40 years for the murder of his grandmother. However, the evidence the prosecutor refused to turn over would have exonerated this young man. He currently sits at a TDCJ prison transferred over from the corrupt TYC. Now, how does not only the SBOT, but Tarrant County even remotely think that is judicial fairness? They need to implement the same team that the Dallas county folks did.

I hate that show. My opinion is based on having lots of defense lawyers as personal friends. If the folks who go up against the prosecution in wilco every day tell me that da's are conviction motivated, then I believe 'em. Maybe someone hasn't been watching ENOUGH Law and Order.

Mr. Shackleford is exactly right. My experience with American jurisprudence is the prosecutors have absolutely no interest in truth or justice, only convictions. When I tried to rescind a "no contest" plea in Florida and go to trial, the State's Attorney opposed it. I asked why they oppose a trial if they were so certain I was guilty. The State's Attorney looked me in the eye and said "we don't have to give you trial."

Actually, there is a way to punish prosecutors, although it is difficult to get other prosecutors to violate "professional courtesy." Every time a prosecutor, state or federal, deliberately withholds exculpatory evidence, he or she is charged with "Honest Services Fraud."

Since federal prosecutors love to use that statute, why not go after other prosecutors who clearly are acting dishonestly? Now, I know this is fantasy, since American prosecutors have become a law unto themselves, but we can dream, can't we?

There is a *very* easy fix that would take almost nothing to implement. The system looks like this: If a prosecutor gets a false conviction against somebody and legally misbehaves during the trial in any way (withhold exculpatory evidence, etc.), then *he* gets to serve as much time in the exact same prison(s) as the victim did when he was exonerated.

The problem would end *today* if these creeps knew that their own freedom was on the line. As it is, there's no reason for a prosecutor to follow the law as there are no repercussions for not doing so.

But, send Parrish to death row,with Michael TONEY's death number 999314, he will know it is "only" for 10 years, before GOING OUT, and THIS is THE DIFFERENCE!What about the BILLS to overturn the conviction?the bills paid by the governtment and by Toney's defense committee?How much? do you know? Ask the Att. gal!

Dude you can't rely on anything John Bradley does up in Wilco as a typical example of the behavior of District Attorney. That man is a deviant even among prosecutors. If that is your basis for comparison it is no wonder you think everyone working for the State is fueled by rage.

Michael Toney was released just a month ago after spending 10 years on death row because an allegedly corrupt prosecutor, Mike Parrish, secured a conviction based on tainted testimony and withholding exculpatory evidence - a fact that has been admitted by the prosecutor's office. Mr Parrish "retired" as soon as this information became public.Michael Toney passed away yesterday in a car accident. This is just too cosy for the Tarrant County District Attorney's Office. I hope and pray that someone will be brought to account for this shocking miscarriage of justice. Michael Toney deserves some justice in death - he certainly did not receive it in life....

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